Thibodeau v. ADT Security Services

Filing 60

ORDER Directing Plaintiff to File Second Amended Opposition Brief (re 49 ); and Restating Briefing Schedule. Plaintiff shall file any Second Amended Opposition no later than Friday, December 1, 2017. Defendant shall file any reply no later than Friday, December 15, 2017. Further, the Clerk of Court is directed to send Plaintiff a copy of Dkt. No. 57. A hearing for this matter is scheduled for January 19, 2017 at 1:30 p.m. in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 11/13/17.(All non-registered users served via U.S. Mail Service & ECF 57)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLAYTON DEL THIBODEAU,

Case No.: 3:16-cv-02680-GPC-AGS
Plaintiff,

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v.

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ORDER

ADT LLC, d/b/a ADT SECURITY
SERVICES, a/k/a/ ADT HOLDINGS,
INC.,

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(1) DIRECTING PLAINTIFF TO
FILE SECOND AMENDED
OPPOSITION BRIEF [DKT. No. 49.]

Defendant.

(2) RESTATING BRIEFING
SCHEDULE

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On September 21, 2017, Defendant ADT LLC, d/b/a ADT Security Services, filed

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an Amended Motion for Summary Judgment following the Court’s order to re-serve

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Defendant. Dkt. Nos. 48, 49. On October 12, 2017, Plaintiff filed his Opposition to

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Defendant’s Motion for Summary Judgment. Dkt. No. 55. Defendant filed a Reply on

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November 3, 2017 alleging that Plaintiff had filed an opposition exceeding page limits

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and failed to file affidavits/declarations with his pleadings.

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On November 6, 2017, the Court issued an Order directing Plaintiff to file an

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Amended Opposition. Dkt. No. 57. In that Order, the Court directed Plaintiff to file an

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Amended Opposition no later than Friday, December 1, 2017, struck from the record

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Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (Dkt. No. 55),
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3:16-cv-02680-GPC-AGS

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issued a Rand notice advising Plaintiff of what was required to oppose a Motion for

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Summary Judgment, and continued the hearing date from December 8, 2017 to January

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19, 2018. Dkt. No. 57.

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On November 9, 2017, Plaintiff submitted an Amended Response in Opposition

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where he included some declarations, spent a majority of the brief making procedural

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challenges to Plaintiff’s Reply, and requested that the Court accept his Opposition filed

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on October 12, 2017. Dkt. No. 59. Plaintiff’s brief does not show any awareness of the

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Court’s Order issued on November 6, 2017 and appears to challenge the procedural

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arguments made in Defendant’s Reply rather than the substantive arguments made in

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Defendant’s Motion for Summary Judgment. See Dkt. No. 57. Moreover, Plaintiff

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requests that the Court “accept Plaintiff’s Opposition as filed on October 12, 2017” when

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the Court has already struck this Opposition from the record and requested that Plaintiff

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file an Amended Opposition brief. The Court concludes that Plaintiff’s Dkt. No. 59

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Supplemental Opposition was filed before Plaintiff received the Court’s scheduling order.

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Accordingly, the Court will allow Plaintiff to file a revised Second Amended

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Opposition that substantively addresses Defendant’s Amended Motion for Summary

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Judgment (Dkt. No. 49). If Plaintiff wishes to file an opposition that exceeds 25 pages in

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length, he should file a Motion requesting this relief.

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The Court also re-issues the following notice to Plaintiff:

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Defendant is making a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure which, if granted, will end your case as to

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the issues noticed by Defendant by granting judgment in favor of Defendant.

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Rule 56 tells you what you must do in order to oppose a motion for summary

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judgment. Generally summary judgment must be granted when there is no

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genuine issue of material fact—that is, if there is no real dispute about any

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fact that would affect the result of your case, the party who asked for summary

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judgment is entitled to judgment as a matter of law. When a party you are
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3:16-cv-02680-GPC-AGS

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suing makes a motion for summary judgment that is properly supported by

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declarations (or other sworn testimony), you cannot simply rely on what the

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complaint says. Instead, you must set out specific facts in declarations,

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depositions, answers to interrogatories, or authenticated documents, as

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provided in Rule 56(c). The evidence in those documents must contradict the

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facts shown in the defendant’s declarations and documents and show that

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there is a genuine issue of material fact for trial. If you do not submit your

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own evidence in opposition, summary judgment, if appropriate, may be

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entered against you as to the issues Defendant is challenging.

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See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (with alterations) (emphasis

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added).

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For the sake of clarity, the Court reissues the following scheduling order:

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Plaintiff shall file any Second Amended Opposition no later than Friday,

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December 1, 2017. The opposition shall not exceed 25 pages (exhibits and declarations

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are not included in this page count). Further, Plaintiff shall include in any amended

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opposition a revised separate statement of material facts that includes citations to sworn

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affidavits or declarations. Defendant shall file any reply no later than Friday, December

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15, 2017. Further, the Clerk of Court is directed to send Plaintiff a copy of Dkt. No. 57.

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A hearing for this matter is scheduled for January 19, 2017 at 1:30 p.m. in

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Courtroom 2D.

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IT IS SO ORDERED.

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Dated: November 13, 2017

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3:16-cv-02680-GPC-AGS